Oakley Co. v. Butler

TURRENTINE, J.,

pro tem.

On April 24, 1930, plaintiff entered into a contract with defendant Maude R. L. Butler wherein plaintiff was vendor and Maude R. L. Butler was vendee, for certain vacant land comprising city lots in the city of Westmoreland. Title was retained in the vendor, the vendee going into possession upon the execution of the contract. Vendee made a small down payment on the purchase price and agreed to pay the balance in monthly instalments. On December 1, 1930, the vendee under the contract leased the property to her husband, G. D. Butler, for a. term of years on a monthly rental basis. This lease permitted the lessee to erect buildings and to make improvements, which buildings and improvements when erected were to constitute trade fixtures. The lessee made certain improvements consisting of a garage with a concrete floor and certain other smaller buildings, and certain gasoline service station equipment. Thereafter the original vendee under the contract defaulted and this action was brought by plaintiff to foreclose the contract of sale as against Maude R. L. Butler and to quiet plaintiff’s title as against the other defendants. The defendant Hammond Lumber Company, a corporation, claimed a mechanic’s lien on the property on account of lumber and supplies sold to defendant G. D. Butler and by him

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used in the construction and erection of the garage and buildings. Plaintiff was not a party to the lease between Maude R. L. Butler and G. D. Butler nor did it consent to its execution nor have any knowledge of its terms and conditions until after the improvements were erected. The defendant Maude R. L. Butler defaulted and the defendant G. D. Butler answered claiming the buildings and improvements to be trade fixtures and consequently personal property which he had a right to remove. The trial court found that the improvements were fixtures and became a part of the realty, and gave judgment for plaintiff. The trial court, however, sustained the validity of the mechanic’s lien asserted by the Hammond Lumber Company and quieted plaintiff’s title to the property subject to the mechanic’s lien, which lien will have to be paid off by the plaintiff. The defendant G. D. Butler appeals.

The question as to whether or not property affixed to real estate becomes a part of the real estate is ordinarify a question of fact to be determined by the trial court from all of the evidence in the case. “A thing is deemed to be affixed to land when ... it is imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to that which is thus permanent, as by means of cement, plaster, nails, bolts, or screws; ...” (Civ. Code, sec. 660.) “When a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, except as provided in section ten hundred and nineteen, belongs to the owner of the land, unless he chooses to require the former to remove it.” (Civ. Code, sec. 1013.) In